A Chicago federal judge has knocked down a lawsuit – set
aside to test the waters for dozens of other similar actions – against a knee
implant maker, but suggested remaining plaintiffs should not lose heart,
because their suits will not likely bear the same deficiencies as the doomed
The Oct. 21 decision was issued by Judge Rebecca Pallmeyer
in U.S. District Court for Northern Illinois, dismissing a suit against Zimmer
Inc., manufacturer of NexGen Flex knee implants. Zimmer is headquartered in
In the past several years, dozens of lawsuits have been
filed around the country against Zimmer, in which plaintiffs alleged they
received defective knee implants. In 2011, the suits were centralized in
Chicago federal court.
One such suit was brought by Theodore Joas, of Eau Claire,
Wis., who said he had a Zimmer knee product implanted during a total knee
replacement surgery in 2008. After the procedure, Joas returned to his job,
which required him to lift and carry heavy loads, and to repeatedly squat.
According to Joas, the implant’s tibial component loosened after a few years,
causing him pain and leading to further surgery to correct the problem. Joas
alleged the implant was designed defectively and the company failed to warn
that the implant could go bad from the physical activities in which he engaged.
The Joas suit is the second case against Zimmer to be scheduled
for a bellwether trial. When a large number of plaintiffs are suing a defendant
on similar or identical grounds, a small number of plaintiffs can be chosen for
bellwether trials to see how the other cases might play out. The first
bellwether trial involving Zimmer ended last year with a jury verdict in
In Joas’ suit, Zimmer filed a motion for summary judgment,
which Judge Pallmeyer granted, finding several fatal weaknesses in the
First, Pallmeyer determined the methods used by a doctor,
who was to testify as an expert for Joas, were not “adequately reliable” and
employed “inconsistent bases” for arriving at conclusions. As a consequence,
Pallmeyer barred the doctor from testifying.
Pallmeyer said the exclusion of the doctor was enough to
wreck Joas’ suit, because Joas was left without an expert to testify the loose
tibia component allegedly caused his injury and the implant’s design was
However, Pallmeyer went on to further jettison the lawsuit, noting
Joas failed to offer a better alternative design and failed to show Zimmer did
not conduct proper testing of the implant – failures fatal to Joas’ action.
The implants are packaged with written warnings intended for
surgeons. Joas claimed the warnings fell short of adequately laying out risks,
but Pallmeyer found this criticism irrelevant, because Joas’ surgeon admitted
he did not read the warnings before inserting the implant. In light of this,
Pallmeyer noted Joas did not demonstrate how an improved warning would have
made a difference.
Pallmeyer said that at any rate, Zimmer is not obligated to
directly warn an implant recipient, because it furnishes warnings to the
surgeon, who is expected to pass on the warnings to the patient.
Having dispensed with Joas’ action, Pallmeyer cautioned that
remaining plaintiffs should not be discouraged. Pallmeyer observed the first
bellwether case reached trial – although plaintiff Kathy Batty lost – because
Batty had strengths Joas lacked, such as that Batty’s surgeon said he read the
implant warnings before Batty’s operation. Pallmeyer said she believes the
other cases will not likely suffer from the same shortcomings.
Joas is represented by Weitz & Luxenburg, of New York.
Zimmer is defended by the global firm of Faegre Baker
Daniels and by Milwaukee-based Peterson,
Johnson & Murray. Both firms have offices in Chicago.